A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had held that the easement had expired with the lease, saying that it was immaterial the right had been enjoyed by the occupier first under a five year tenancy, and thereafter (up to the time of the relevant conveyance) as statutory tenant: ‘He was undoubtedly using the right of way at that time. It was certainly an easement, right or advantage ‘reputed to appertain to the first floor flat’ and was enjoyed with that part ‘of the land, houses or other buildings conveyed.’ I can find nothing in the wording of section 62(2) of the Act to indicate that the ‘land conveyed’ cannot include land subject to a lease or an adverse right of occupation by a tenant protected by statute. The easement, right or advantage is enjoyed with and appertains to the land, not to the statutory right of occupation… The grant by which the right of way was originally created was a term of five years; but there were no specific limitations to that grant. I agree with what has already been said by May L.J. in relation to Mr. Reid’s submissions that the judge erred in considering the user of the way by the vendor rather than the user of the right of way with the land.’
May LJ, Purchas LJ
[1984] 1 QB 747
Law of Property Act 1925 62
England and Wales
Citing:
Approved – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Lewis v Meredith 1913
Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any . .
Cited by:
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Cited – Wall v Collins and Another CA 17-May-2007
Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.252419
